Appeal from the Order of the Court of Common Pleas of York County, in case of Midas Muffler Shop, Edward Geesey and Damar Corporation v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles, No. 85-SU-04544-08.
Harold Cramer, Assistant Counsel, with him, Lawrence R. Wieder, Assistant Counsel, Spencer A. Manthorpe, Chief Counsel, Henry G. Barr, General Counsel, for appellant.
Clyde Crady Swisher, III, with him, Michael Q. Davis, Campbell, Spitzer, Davis & Turgeon, for appellees.
Judges MacPhail and Barry, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge MacPhail. Dissenting Opinion by Senior Judge Kalish.
[ 108 Pa. Commw. Page 200]
This appeal by the Pennsylvania Department of Transportation (DOT) is from an order of the Court of
[ 108 Pa. Commw. Page 201]
Common Pleas of York County*fn1 reversing a one-year suspension order entered by DOT pursuant to the provisions of Section 4724 of the Vehicle Code, 75 Pa. C.S. § 4724, against the appellees*fn2 for fraudulent recordkeeping. We reverse.
In the course of investigating a complaint regarding a faulty inspection allegedly performed at Midas, a state trooper reviewed the inspection record sheet maintained at the garage.*fn3 He discovered that inspection serial number 1760075 had been repeated after serial number 1760076 was deleted.*fn4 The officer surmised that this error was repeated, that is, successive inspections were given a number which was numerically one-figure less than it should have been. The trooper then interrogated Mr. Geesey regarding the entry made with respect to serial number 1760080 because it appeared to the officer that notwithstanding the obvious duplication of 1760075, the serial numbers were in correct sequence following 1760080. Mr. Geesey admitted to the trooper that he discovered that what had happened
[ 108 Pa. Commw. Page 202]
was what the trooper had surmised and that he, Geesey, then inserted fictitious information after number 1760080 including owner's name, vehicle registration number, vehicle identification number, the year, make and body style of the "ghost" vehicle, the vehicle registrant's name and address, the odometer reading, the fraction of remaining brake lining of wheels pulled and the total charge for inspection and repair parts. The trooper testified that Mr. Geesey told him that he made the fictitious entry "to cover up that error that had been made several days before and just carried on."*fn5
The narrow issue presented to this Court is whether those factual circumstances constitute fraudulent recordkeeping. The trial court held that inasmuch as the Commonwealth "did not charge nor pursue before this court, as to this licensee, any theory of faulty inspection, intent to deceive, to defraud, to cause harm, nor any other theory of fraud by the licensee or the employee,"*fn6 DOT failed to prove fraudulent recordkeeping. The trial court's order*fn7 and the last sentence of the opinion in support thereof seem to indicate that ...